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2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
JUDICIARY LEGISLATION AMENDMENT BILL 2006
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Philip Ruddock MP)
JUDICIARY LEGISLATION AMENDMENT BILL 2006
OUTLINE
This Bill has two main purposes. The first is to give effect to purported orders made by
non-judicial officers of State courts of summary jurisdiction contrary to
paragraph 39(2)(d) of the Judiciary Act 1903, by providing that the rights and liabilities
of all persons are the same as if each such order had been an order made by the court in
the exercise of its federal jurisdiction.
The effect of paragraph 39(2)(d) is that registrars and other non-judicial officers of State
courts of summary jurisdiction do not have jurisdiction to make certain orders in federal
matters, such as default orders. A corresponding provision, subsection 68(3) of the
Judiciary Act, provides for similar restrictions in relation to the exercise of federal
jurisdiction in criminal cases.
In response to evidence that a large number of family law consent orders were made
contrary to paragraph 39(2)(d), the Government added a new Part XIVB to the Family
Law Act 1975. Part XIVB provides that the rights and liabilities of all persons are the
same as if each such order had been an order made by the court in the exercise of its
federal jurisdiction.
Since the commencement of Part XIVB, it has become apparent that orders other than
those covered by Part XIVB have been made contrary to paragraph 39(2)(d). This Bill
will repeal Part XIVB and provide for new similar provisions to cover all ineffective
orders, not just family law orders.
The Bill also repeals paragraph 39(2)(d) and subsection 68(3). This will place State
summary courts in the same position as State district, county and supreme courts,
enabling States to determine, subject to constitutional requirements, which class of
officer may exercise federal jurisdiction and in what circumstances. These amendments
ensure that State summary courts may be constituted in the same way for the purpose of
exercising federal jurisdiction as they are for the purpose of exercising State jurisdiction.
FINANCIAL IMPACT STATEMENT
The amendments are not expected to have any significant financial impact.
NOTES ON CLAUSES
Clause 1: Short title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. All sections of the Act will commence on the day on which it receives Royal
Assent.
Clause 3: Schedule(s)
3. This clause provides that each Act that is specified in a Schedule is amended as set
out in that Schedule.
Schedule 1 - Orders of non-judicial officers of State courts of summary jurisdiction
Part 1 - Amendments
Judiciary Act 1903
Item 1
4. This amendment repeals paragraph 39(2)(d) to remove the requirement that in a
State court of summary jurisdiction, federal jurisdiction may only be exercised by a
magistrate or an arbitrator.
5. While this requirement is being removed, there are constitutional requirements in
relation to the exercise of federal jurisdiction. Federal jurisdiction conferred on a State
court may be exercised by a registrar or other officer who is an integral part of the
organisation of the court, as it is constituted under State law (see The Commonwealth v
Hospital Contribution Fund (1982) 150 CLR 49). The requirements in relation to review
of decisions of non-judicial officers are discussed in Harris v Caladine (1990) 172 CLR
84.
Item 2
6. This amendment removes the reference to paragraphs 39(2)(c) and (d) and
substitutes it with a reference to paragraph 39(2)(c). The amendment is consequential to
item 1.
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Item 3
7. This amendment repeals subsection 68(3) to remove the requirement that the federal
jurisdiction of State and Territory courts under subsection 68(2) of the Judiciary Act must
be exercised only by a Judge or magistrate.
8. While this requirement is being removed, there are constitutional requirements in
relation to the exercise of federal jurisdiction. Federal jurisdiction conferred on a State
court may be exercised by a registrar or other officer who is an integral part of the
organisation of the court, as it is constituted under State law (see The Commonwealth v
Hospital Contribution Fund (1982) 150 CLR 49). The requirements in relation to review
of decisions of non-judicial officers are discussed in Harris v Caladine (1990) 172 CLR
84.
Commonwealth Places (Application of Laws) Act 1970
Item 4
9. Item 4 repeals subsection 8(5) of the Commonwealth Places (Application of Laws)
Act 1970. This amendment is consequential to item 1.
Crimes Act 1914
Item 5
10. Item 5 amends subsection 15A(1ACA) of the Crimes Act 1914 to remove the
references to paragraph 39(2)(d) of the Judiciary Act 1903 and subsection 26(d) of the
Acts Interpretation Act 1901 and substitutes it with a reference to subsection 26(d) of the
Acts Interpretation Act 1901. This amendment is consequential to item 1.
Family Law Act 1975
Item 6
11. This amendment repeals Part XIVB of the Family Law Act 1975. Part XIVB is no
longer necessary as Part 2 of Schedule 1 to this Bill effectively validates all orders made
contrary to paragraph 39(2)(d) by non-judicial officers of State courts of summary
jurisdiction, including family law orders previously dealt with by Part XIVB.
Part 2 - Past orders
Item 7
12. This amendment contains definitions of the terms used in Part 2. In particular the
definition of `non-judicial officer' makes it clear that the Part only applies to orders
purported to be made by officers of State courts of summary jurisdiction who are not
officers of the kind referred to in repealed paragraph 39(2)(d) of the Judiciary Act. This
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definition includes (as well as other officers) registrars of State courts of summary
jurisdiction.
Item 8
13. This amendment defines an ineffective order for the purposes of Part 2, as meaning
an order made by a non-judicial officer of a State court of summary jurisdiction in the
purported exercise of the court's federal jurisdiction contrary to section 39(2)(d) and
made before the commencement of the Part.
14. Subitem 8(3) provides that if there has been a purported variation etc to an
ineffective order, a reference to that ineffective order in Part 2 is to be interpreted as a
reference to the content of the order in the form it took from time to time. This ensures
that any variations etc to an ineffective order are taken into account when determining the
extent of a person's rights and liabilities under item 9.
Item 9
15. This item creates rights and liabilities in relation to ineffective orders.
16. It provides that the rights and liabilities are the same as if the ineffective order had
been a valid order of the court of summary jurisdiction in question. The purpose of this
section is to provide for the same consequences to flow from such orders as if they had
been valid orders of the court in question. The declaration of the rights and liabilities is
limited to orders that would have been within the federal jurisdiction of the court in
question.
Item 10
17. This item defines the effect of the rights and liabilities created under item 9.
18. Subitem 10(1) provides that the statutory rights and liabilities created by item 9 may
be exercised and enforced in the same way as similar rights and liabilities arising under a
valid order of the court of summary jurisdiction in question. Subitem 10(2) makes it
clear that these rights include the right to appeal.
Item 11
19. This item defines the effect of any acts done or omitted to be done in relation to the
rights and liabilities created under item 9.
20. Subitem 11(1) ensures that acts done, or omitted to be done, in relation to the rights
and liabilities specified in item 9 have effect for the purposes of any laws in the same
way as orders of the relevant court of summary jurisdiction. This may be relevant, for
example, when ascertaining a person's liabilities under other Commonwealth laws, such
as taxation or bankruptcy.
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21. Subject to subitem 11(3), subitem 11(2) provides that, for the purposes of any laws
relating to the enforcement of orders (called enforcement laws and defined in subitem
11(4)), acts done or omitted to be done in relation to the rights and liabilities defined in
item 9 give rise to the same consequences as if each ineffective order were a valid order
of the relevant court. This preserves the consequences of, amongst other things, failing to
comply with an order.
22. Subitem 11(2) is not intended to apply to the consequences of criminal convictions.
It is intended to follow from the fact that a conviction is not validated or confirmed
(subsection 11(3)) that any order purporting to impose a punishment in respect of the
purported conviction also fails.
23. Subitem 11(3) prevents item 11 from operating to validate or confirm a conviction.
24. Subitem 11(4) defines what an enforcement law is for the purposes of this section.
An `enforcement law' for the purposes of item 11 is a provision, other than a law relating
to contempt of court, that sets out a consequence for a person if the person contravenes or
acts in a specified way while there is in force an order made by a court exercising federal
jurisdiction.
Item 12
25. This item defines the powers of courts in relation to the rights and liabilities created
under item 9.
26. It gives courts the ability to deal with the statutory rights and liabilities created by
item 9 in the same way that they could deal with similar rights and liabilities created by a
valid order of the relevant court of summary jurisdiction. It also ensures that courts can,
in the circumstances specified in subitem 12(2)(b), make orders to achieve any other
result that could have been achieved if an ineffective order of the court of summary
jurisdiction in question had been a valid order of that court. This item would apply, for
example, to appeals.
Item 13
27. This item further clarifies the power of courts in relation to the rights and liabilities
created under item 9.
28. It provides that, where a person has interfered with a right conferred or affected by
item 9 or failed to satisfy or comply with a liability conferred or affected by item 9, the
interference or failure can be dealt with in the same manner as if it had occurred in
relation to a right or liability arising under a valid order of the relevant court of summary
jurisdiction. This, for example, would give the relevant court the ability to deal with such
failures or interferences as contempt of court.
Item 14
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29. Since ineffective orders are not valid orders of courts in proceedings in federal
jurisdiction, it is necessary to have a special evidence provision rather than rely on the
application of the Evidence Act 1995. This item therefore allows the court record of an
invalid order to be used as evidence to show the existence and details of a person's rights
and liabilities created under item 9.
Item 15
30. This item ensures that Part 2 does not apply to any order of a court of summary
jurisdiction that was declared invalid by that court or another court before the Part
commences. This preserves any finding of invalidity that was in place before these
provisions commence. It is not intended that Part 2 interfere with judicial findings of
invalidity made before its commencement.
Item 16
31. This item provides that jurisdiction is conferred on the Family Court of Australia and
the Federal Magistrates Court to hear matters arising under this Part. The State courts,
including the Family Court of Western Australia, and the Federal Court already have
jurisdiction by virtue of sections 39 and 39B of the Judiciary Act.
32. A court only has jurisdiction in relation to matters arising under this Part if it had
jurisdiction in relation to the matter in which the ineffective order was made.
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